Burden of Proof

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

KEN PADOWITZ, PROSECUTOR: The Broward State Attorney's Office believes that the governor can hold a clemency hearing, and that we are prepared to aid the governor in deciding what is the most appropriate sentence for Lionel Tate.

JIM LEWIS, ATTORNEY FOR LIONEL TATE: If we can snatch that plea bargain back, that plea bargain was fair then. And you know what? It's fair now. What's happened, other than a child is executed and has executed his constitutional rights to go to trial? What has happened since then? Nothing.

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ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: A 14-year-old boy is sentenced to life in prison in Florida. But will the governor commute the sentence?

Plus, a Navy court of inquiry looks into the sinking of a Japanese fishing vessel by a U.S. sub, and turns to the crafts commander.

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CHARLES GITTINS, ATTY. FOR CMDR. SCOTT WADDLE: This is an accident investigation. And it's important that the clause of the accident be determined. But in order to find the cause, I'm not going to recommend to my client that he forfeit his rights, so that he could be prosecuted more successfully by the government.

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ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: Hello and welcome to BURDEN OF PROOF.

The sentencing of a 14-year-old boy convicted of murdering a playmate garnered national attention on Friday. But is the case closed? Lionel Tate was tried as an adult and sentenced to life in prison. He was just 12 years old when he killed a six-year-old girl. Tate said he didn't intentionally kill the girl, that he was imitating pro wrestling moves that he saw on television. At the time of her death, Tiffany Eunick weighed just 48 pounds. Tate weighed 166 pounds.

Tate's attorneys are appealing the case. And both the defense and the prosecution are seeking clemency from Florida Governor Jeb Bush. Bush says he's considering it.

Joining us today from New York is Ken Padowitz, assistant state attorney for Broward County, Florida. Also in New York: Richard Rosenbaum, the appellate attorney for Lionel Tate. And joining us from Washington is psychiatrist Eliot Sorel.

First right to you. Richard, what are you appealing on behalf of Lionel? Isn't this pretty well set? This is what the Florida legislature decided would happen, and this is what the sentence is.

RICHARD ROSENBAUM, LIONEL TATE'S APPEALS LAWYER: Well, not really. We are appealing the judgment, the sentence and the conviction. We are appealing trial errors that were made by the trial judge, potentially prosecutorial misconducts if we can find those types of errors, as well as potentially errors by trial counsel, if those are present.

COSSACK: But Richard, isn't the bottom line, which you are really looking to do, is figure a way here in which your young Lionel can be somehow taken away from this terrible sentence that's been imposed upon him?

ROSENBAUM: Oh, definitely. I'm going to do whatever I need to try to get him out of Florida state prison. He's sitting there, locked in solitary confinement right now.

COSSACK: Well, is he in a Florida state adult prison, or is he in a juvenile holding facility?

ROSENBAUM: Well, it's my understanding he's at the South Florida Reception Center, which is anything but a reception center. It's the local place that we put people as they get indoctrinated into the adult state system. And that's where he is now.

And hopefully in the next couple of hours, the trial lawyer, Jim Lewis, will have an opportunity to meet with him. It will be the first time any of us have seen him since he was led away in handcuffs and shackles Friday from the courtroom while he was crying.

COSSACK: Ken, what happened here? What went wrong? What went right? As the prosecutor, as you pointed out the other day, you have a special duty to make sure that justice happens. What happened here? And is this justice?

PADOWITZ: Yes, this was justice. This was a vicious and brutal murder. Over the course of five minutes, Lionel Tate beat and kicked and stomped to death a little six-year-old first-grade girl. Someone he had just met two or four weeks earlier. This was a horrible and horrific first-degree murder. And Lionel Tate was indicted by the grand jury as an adult for first-degree murder, because the juvenile system would only place Lionel Tate in six to nine months in a juvenile facility. That was not appropriate. The grand jury felt it was a first-degree murder.

I offered a very reasonable plea offer of three years in a juvenile facility and 10 years of probation. And the defendant didn't take it.

This focus of this case should be on the victim, the little girl that had her life taken away from her. Lionel Tate decided he wanted a trial. He went to trial. The jury of 12 members of the community spoke and said guilty as charge of first-degree murder. The judge could did the only thing he could do under Florida law and sentence the defendant to life in prison.

I believe, however, that prosecutors everywhere, including from the Broward State Attorney's Office, not seek convictions, but we're, according to the American Bar Association, ministers of justice as minister of justice. And as a minister of justice, I believe it's important to go to the governor, the legal avenue set up for instances such as this, and ask Governor Bush and two members of the cabinet to hear evidence, to listen to the information about this horrific murder, but take into consideration Lionel Tate's age of 12-and-a-half at the time he committed it.

COSSACK: Let me interrupt you a second. Some would say that, in many ways, what you are doing is passing the buck, that you were the one that instigated this first-degree murder. When you go to the grand jury and ask for a first-degree murder verdict, it's the prosecutor that asks for the first-degree murder indictment. That, in fact, you prosecuted the case correctly. And I'm not in any way suggesting that you didn't.

But what else did you think was going to happen? If you were successful, he was going to get life without possibility of parole. And now, your office or you individually are coming back and saying, Judge, bail us out of this horrible mess.

PADOWITZ: Or actually...

COSSACK: Or governor, rather. Governor, bail us out of this horrible mess.

PADOWITZ: Actually, I don't believe it is a horrible mess. I believe that justice was served for Tiffany Eunick, the little six- year-old victim.

And what happened was the grand jury wasn't told or suggested on how to indict the defendant. They could have declined to indict and said to the state attorney's office, Charge Lionel Tate in juvenile court. They didn't. They indicted him for first-degree murder as an adult. And it's my sworn duty as an assistant state attorney to prosecute the case. I tried... COSSACK: But Ken, isn't it true that when you go to the grand jury, you request certain things from the grand jury? And isn't it true that your office requested an indictment for Lionel Tate as an adult for first degree murder?

PADOWITZ: Actually, that's incorrect. It's different in different states. But in Broward County, Florida, we try to present the evidence to the grand jury. We read them the law. And the grand jury makes a decision. We don't lead them down any particular path. They had an opportunity to listen to the evidence and decide to indict him for first-degree murder, second-degree murder or not to indict him at all, and recommend that he be prosecuted as a juvenile. They indicted him for first-degree murder.

I tried to offer a very reasonable plea, some people say way too lenient, to end this matter and have the defendant go to a juvenile facility for three years and get 10 years of psychological help.

COSSACK: All right.

PADOWITZ: He turned it down.

COSSACK: Ken, let me go to Richard for a second.

Richard, an issue has to be, in this case, whether or not a 12- year-old can form the intent to kill. Do you intend to present evidence on that, or intend to appeal on that issue?

ROSENBAUM: Well, we intend to appeal on that. We are still getting ready to get over the trial transcripts and figure out what facts were illicit as trial and which ones weren't.

It's Criminal Law 101 that a grand jury would indict a ham sandwich. Whatever prosecutor puts up is what ends up being returned as a true bill, which is the formal indictment.

Now, in this case, I filed a motion trying to get the grand jury transcripts to see what actually went on there. And Mr. Padowitz and his office fought us, and the judge ruled in his favor. So the public isn't going to get to see what actually went on at the grand jury.

ROSENBAUM: They're always secret while there's a need for secrecy. Typically after a case is over, there are avenues to get them released, under certain circumstances. And we felt that we fit those type of circumstances.

COSSACK: All right, let's take a break.

When we come back, looking into the mind of a child. Can a 12- year-old understand life or death? Don't go away.

(START LEGAL BRIEF) Attorney General John Ashcroft has ordered the inspector general to conduct an investigation into FBI security procedures. The investigation comes after charges that former FBI agent Robert Hanssen sold U.S. secrets to Russia.

(END LEGAL BRIEF)

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KATHLEAN GROSSETT-TATE, LIONEL TATE'S MOTHER: But I've heard of what happens to people in jail, and it's not nice. A child may be raped, may be killed. Who knows? He had scratches on his face today because someone was trying to take his food. He had scratches on his head Wednesday from somebody else. And then they said in the news that he was the one who started it. He had a scar on his head from when they put him in the detention center from somebody else beating him up.

UNIDENTIFIED MALE: That's right.

GROSSETT-TATE: So God only knows what will happen to him.

(END VIDEO CLIP)

COSSACK: On Friday in Fort Lauderdale, Florida, 14-year-old Lionel Tate was sentenced to life in prison without possibility of parole. Tate was convicted of killing a 6-year-old playmate when he was only -- when he was 12 years old.

Joining me now is Dr. Eliot Sorel from Washington.

Doctor, what does a 12-year-old know about concepts such as life, concepts such as death? The ability here in this case was that the jury said that he was guilty of having the intent to murder this girl. Is a 12-year-old normally able to understand those concepts?

DR. ELIOT SOREL, PSYCHIATRIST: Mr. Cossack, this, first of all, is a terrible tragedy for both families. Certainly children of this age, their brain development is not at the point where they can have the kind of breaks, so to speak, where to stop play at a certain point, beyond a certain point where is irrevocable where someone gets injured.

So in terms of brain development, at age 12, one doesn't have all the controls, so to speak, regarding impulsive behavior.

Second, I think the notion that he's modeled his behavior by what he sees on television is very credible. Unfortunately, many of the shows that our children watch that are violent shows show no immediate consequences to that behavior. So the likelihood of they're trying to repeat those behaviors is very high, especially because there's no immediate consequences that are visible.

COSSACK: Dr. Sorel, if I could just interrupt you a moment. Sir, to say that children imitate what they see on television certainly is something that's understandable. But most children, the vast majority of children, do not engage in this kind of activity even though they've seen it on television. So the notion that this child said, I saw this on television and began to imitate it, is that something that should play in terms of what his defense is?

SOREL: I'll leave that to the lawyers. But from the vantage point of a physician, I would say that, in fact, children experiment with other behaviors that they see, that they watch from adults. Certainly that is not a legal statement or an excusable statement about the consequences of what he did. But the likelihood of repeating or modeling behavior by what's been seen on television is great. It is true what you said, that not all children will engage in that behavior.

But a related issue here we should not lose sight of: It was 10:40 p.m. at night, a 12-year-old playing with a 6-year-old girl. That should raise some questions in everybody's mind.

COSSACK: All right, Richard, what about that, in the sense of being able, what Dr. Sorel talks about, the notion that this child perhaps was unable to form the kind of intent that was necessary to form a murder charge or a murder conviction?

ROSENBAUM: I agree with that completely. That not only went to part of the heart of the defense, but it also went to -- when I got involved in the case, one of the first things I did was start complaining that the child had never had a competency -- a court- ordered competency evaluation done. I filed an affidavit, as did another lawyer and a doctor, all saying that this child wasn't competent. Unfortunately, the state opposed it and the judge went the state's way and never had a court-ordered competency evaluation.

COSSACK: Ken?

ROSENBAUM: I don't believe that Lionel had a clue what was going on here.

COSSACK: Ken, what about that, this notion of a competency hearing for a 12-year-old? Why would the state oppose such a thing?

PADOWITZ: The state would oppose it because, nine months before the trial, Dr. Sherri Borg-Carter (ph) did a competency evaluation and found him way beyond competent. In fact, Lionel Tate had the ability to have a whole team of psychologists and psychiatrists and trial lawyers for upwards of a year prior to the trial to aid him in his defense. Most criminal juvenile defendants across the country never have that kind of an opportunity. He was clearly competent. He was competent when he got expelled from school 15 times since kindergarten and he's competent while he sits in a Broward County jail awaiting sentencing...

COSSACK: All right, Ken...

PADOWITZ: ... when he's trying to stab other inmates with a pencil leaning out his jail cell. COSSACK: All right, let me jump in here, then. If that's all true, what you're saying about Lionel Tate -- and I, you know, I have no reason to believe that you're not telling the truth -- then why are you going ahead and asking for clemency?

PADOWITZ: Because I think, as a minister of justice, we have to ensure that Lionel Tate is punished for this horrible murder that he committed, yet at the same time take into consideration his age of 12 1/2 at the time he committed this murder. He was 14 when he went to trial, but he was 12 1/2 at that time that he committed this brutal beating. But that should be taken into consideration by the governor. The judge did not have that opportunity. Florida law, as a citizen of the state, needs to be changed to give judges discretion in sentencing juveniles prosecuted as adults.

COSSACK: And what would you -- would you suggest, therefore, that the law be amended in Florida so that judges do have that discretion?

PADOWITZ: I think -- I can't speak as a state attorney, but I can say as a citizen that it should be amended. Judges should be given that discretion. And juvenile court should be changed to have the teeth so that when kids commit murders such as this, they can be adequately punished in juvenile court, not six months in juvenile detention. That's ridiculous and that's not justice. And I wanted to ensure justice was done for Tiffany.

COSSACK: All right, let's take a break.

Next on the docket, a change in focus to Honolulu, Hawaii. The father of the commander of the USS Greeneville fears his son will become a scapegoat in a Navy court of inquiry. We'll have an interview with the attorney for Commander Scott Waddle when we come back.

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(BEGIN Q&A)

Q: A Missouri judge has ordered a man to pay $2.5 million to a teenaged girl he molested in 1992 when she was 6. Where is the money going to come from?

A: The $2.7 he won from the lottery in 1989. The eight remaining annual payments will go directly to the victim.

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JILL WADDLE, SUB COMMANDERS'S WIFE: I am so sorry. My heart goes out to all those families and friends -- and how much remorse we feel for this happened.

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COSSACK: In just a few minutes, a Navy court of inquiry begins its second week of testimony in Honolulu, Hawaii. The inquiry is looking into the sinking of a Japanese fishing vessel on February 9, and could lead to the courts-martial of three officers aboard the USS Greeneville -- among them, Commander Scott Waddle.

We spoke with his attorney just a few minutes ago.

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COSSACK: Charlie, right now, your client is facing a court of inquiry. What is the difference between a court of inquiry and a court-martial?

GITTINS: Well, a court of inquiry is a fact-finding investigation. It's the most formal fact-finding investigation that the Navy conducts. In this case, we have a three-admiral fact-finding board. They take testimony, render -- make findings of facts, make opinions and recommendations as to further proceedings, if any -- whereas a court-martial, obviously, wherein an individual's criminal liability is determined.

COSSACK: Now, also present on the court of inquiry board is a Japanese admiral. But, apparently, he will be a nonvoting member of the board. But still, he is present. Are you concerned with his presence?

GITTINS: Well, first of all, I think Admiral Ozawa is a very honorable naval officer. My concern has been that, in order to have him as a member of the panel, the Navy has short-circuited procedures in the regulation, first by not requiring him to take the oath, even though he is going to be in deliberations, and secondly, by the fact that he is not a military officer assigned -- he's not a federal employee or a U.S. Navy or a military officer, which is a violation of the regulations.

So those two violations are concerns. I'm also concerned by the overarching failure of Admiral Ozawa to have take an oath to the Constitution. If he had taken an oath to the Constitution, I would have less problem with the fact that he didn't take the oath to this proceeding.

COSSACK: But this is an investigative body, as you point out. And he is not going to be a voting member. Why is it necessary, then, for him to take an oath? Isn't he there merely to advise?

GITTINS: Well, I'm not sure that he's there to advise. He's going to be involved in the deliberations. I would like to be in the deliberation room, even if I don't get to vote. But, unfortunately, we don't have that opportunity. An individual who hasn't taken the oath is going to be inside the deliberation room, and we don't have the opportunity to know what he's going to say. That's problematic, from my point of view.

COSSACK: Now, your client will be called to testify. Will you allow him to testify or you will invoke his rights under the Fifth Amendment?

GITTINS: Well, I will only provide recommendations for my client. And at this time, because there is still the potential for a court-martial proceeding, it would be my advice that he not testify absent a grant of testimonial immunity.

This is an accident investigation. And it's important that the cause of the accident be determined. But in order to find the cause, I'm not going to recommend to my client that he forfeit his rights so that he could be prosecuted more successfully by the government. My overall concern is for the future of my client and to protect him from criminal liability.

COSSACK: Now, Charlie, if he gets testimonial immunity from the government during this court of inquiry, does that mean that no charges can ever be brought against him?

GITTINS: Absolutely not. It just can't -- the government just could not use his testimony or anything derived from his testimony in a follow-on court-martial. Other witness testimony that has not been subject to the grant of testimonial immunity, other evidence that was obtained prior to the grant of testimonial immunity, that is all fair game. And the government could try, if they can, to convict my client using that evidence.

COSSACK: There is a report that one of the causes for this horrible accident was that the surfacing procedures were rushed through. For example, scanning the surface to look for other ships is something that usually takes three to four minutes. It was done somewhere in 80 seconds this time. That goes directly to your client. How do you answer that charge?

GITTINS: Well, I answer it this way: The procedures that were discussed -- the surface scan of about three minutes -- involves a full 360-degree scan at high power in a very slow and deliberate method. My client knew that the contacts were in a very specific sector. He performed that very deliberate, high-powered search in that sector. That did not take three minutes.

He satisfied himself that he did not see any contacts. And, unfortunately, the Ehime Maru was in that sector and he didn't see it.

COSSACK: Now, there is also a report, because there were civilians on board, they interfered with the traditional and usual procedures that one -- that the commander should go through before surfacing the vessel. Did the civilians interfere?

GITTINS: I haven't seen any evidence that the civilians interfered in any way, other than possibly by the fact that they were in the control room being a physical barrier for movement in the control room. And that only relates to one issue. And that's the plotting of contacts on what is called the contact evaluation plot, a paper plot.

I'm not sure that that would have helped the captain or the OOD, because, frankly, the contact that was plotted, the Ehime Maru, was viewed by my client and by the OOD on the fire control system, which is more accurate than the CEP. And it indicated, at the time they reviewed it, that the contact was at 15,000 yards and opening, not closing.

(END VIDEOTAPE)

COSSACK: We would like to thank Charles Gittins, attorney for Commander Scott Waddle, for joining us today.

And that's all the time we have today.

Today, on "TALKBACK LIVE": Should the media have access to Dale Earnhardt's autopsy photos despite the family's objections? I'll be filling in for Bobbie Battista today. So send me your e-mail and tune in at 3:00 p.m. Eastern Time.

And we'll be back tomorrow with another edition of BURDEN OF PROOF.

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